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R v Morant

R v Morant

Case [2018] QSC 251 2 November 2018

Factual Basis for Sentence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Morant [2018] QSC 251

PARTIES:

R
v
GRAHAM ROBERT MORANT

(defendant)

FILE NO/S:

Indictment No 1424 of 2018

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

2 November 2018 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

17 to 21 September 2018; 24 to 28 September 2018; 2 October 2018; 26 October 2018; 2 November 2018

JUDGE:

Davis J

ORDER:

Convictions recorded.

On count 1, the defendant is sentenced to 10 years imprisonment.

On count 2, the defendant is sentenced to 6 years imprisonment.

The sentences are to be served concurrently.

Pursuant to s 159A of the Penalties and Sentences Act 1992, it is declared that 32 days spent in pre-sentence custody between 2 October 2018 and 2 November 2018 be deemed time already served under the sentence

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – where the defendant was charged with one count of counselling suicide and one count of aiding suicide pursuant to s 311 – where the defendant was convicted of both counts after trial – where no comparatives are available for the offence of counselling suicide

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – where the Crown pressed for sentencing on the basis that the defendant counselled and aided his wife to commit suicide motivated by financial benefit – where the defence resisted that finding – whether such a finding should be made on sentence

Criminal Code (Qld) s 293, s 301, s 306, s 311
Evidence Act 1977 (Qld) s 93B, s 132C

Penalties and Sentences Act 1992 (Qld) s 9

Attorney-General for the State of South Australia v Tichy (1982) 30 SASR 84, followed
Barbaro v The Queen, Zirilli v The Queen (2014) 88 ALJR 372, followed
Burns v The Queen (2012) 246 CLR 334, cited
Carter v Attorney-General (No 2) [2014] 1 Qd R 111, cited
Hili v The Queen (2010) 242 CLR 520, cited
R v Cheung (2001) 209 CLR 1, followed
R v Goodwin; ex parte Attorney-General [2014] QCA 345, followed
R v Hood (2002) 130 A Crim R 473, considered
R v Maxwell [2003] VSC 278, considered
R v Mott [2012] NZHC 2366, considered
R v Nagy [2004] 1 Qd R 63, cited
R v Nielsen [2012] QSC 029, considered

Walmsley v The Queen (2014) 253 A Crim R 441, considered

COUNSEL:

M Lehane for the Crown

M Thomas and D Wells for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Team Lawyers for the defendant

HIS HONOUR: Graham Robert Morant, you have been convicted by a jury after trial of two counts against section 311 of the Criminal Code, namely one count of counselling suicide against section 311(b) and one count of aiding suicide against section 311(c) of the Code.
The person you counselled and then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Morant

Details

AGLC: R v Morant [2018] QSC 251
Case: [2018] QSC 251
Decision Date: 2 November 2018 (delivered ex tempore)

CaseChat Overview and Summary

The defendant, Morant, was charged with counselling and aiding his wife to commit suicide under section 311 of the relevant criminal code. The case was heard and determined in the Supreme Court of the jurisdiction. The defendant was convicted on both counts following a trial. The Crown sought to argue that the offences were motivated by financial gain, a contention the defence contested.

The court was required to determine the appropriate sentence for the defendant, taking into account the nature and circumstances of the offences. A significant issue was whether the motive attributed by the Crown could be considered in sentencing, given the absence of precedent for sentencing in cases involving counselling suicide. The court needed to balance the principles of justice and proportionality in the absence of comparable cases.

The court found that, although there were no comparable cases for counselling suicide, the principles of sentencing for aiding suicide could be applied. The court recognised the serious nature of the defendant's actions and the impact on the victim. It acknowledged the Crown's argument regarding the motive but did not find sufficient evidence to support it. The court imposed a sentence of 10 years for counselling suicide and 6 years for aiding suicide, to be served concurrently, and ordered that the defendant's pre-sentence custody be counted towards the sentence.

Orders

Orders of the court

Convictions recorded.

On count 1, the defendant is sentenced to 10 years imprisonment.

On count 2, the defendant is sentenced to 6 years imprisonment.

The sentences are to be served concurrently.

Pursuant to s 159A of the Penalties and Sentences Act 1992, it is declared that 32 days spent in pre-sentence custody between 2 October 2018 and 2 November 2018 be deemed time already served under the sentence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Morant [2018] QSC 251

Most Recent Citation

Morant v Terry Ryan (The State Coroner) [2022] QDC 134

Cases citing this decision · 1 of 1 shown

Morant v Terry Ryan (The State Coroner)
[2022] QDC 134 Para 7

…he three ladies have not recalled the conversations verbatim. There may have been some honest errors made in their recall.”[41] [40] R v Morant [2018] QSC 251, [25]. [41] Ibid [65].…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Goodwin; Ex parte Attorney-General
[2014] QCA 345 Para 6

…Fortunately, Justice Mullins, sitting in the Court of Appeal in R v Goodwin; ex parte Attorney-General [2014] QCA 345, carefully considered the approach which should be taken in the position in which I now find myself where there are no comparative sentences for the offence of counselling suicide. Her Honour said…
Walmsley v The Queen
[2014] ACTCA 24 Para 13

…ere are some comparative sentences in relation to count 2, aiding suicide. They are R v Nielsen [2012] QSC 029, a sentence imposed by Justice Dalton; Walmsley v The Queen (2014) 253 A Crim R 441, a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory; R v Mott [2012] NZHC 2366, obviously a…
Barbaro v The Queen
[2014] HCA 2 Para 4

…n my view, such an approach is inconsistent with the principles laid down by the High Court in cases such as Barbaro v The Queen, Zirilli v The Queen (2014) 88 ALJR 372, and Hili v The Queen (2010) 242 CLR 520. In Barbaro , Chief Justice French and Justices Hayne, Kiefel (as her Honour then was) and Bell said this at…
Burns v The Queen
[2012] HCA 35 Para 47

…In cases of procuring, counselling or aiding suicide, it is the deceased who, by their involuntary act, causes their own death; See Burns v The Queen (2012) 246 CLR 334 and Carter v Attorney-General (No 2) [2014] 1 Qd R 111.…
R v Mott
[2012] NZHC 2366 Para 13

…n; Walmsley v The Queen (2014) 253 A Crim R 441, a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory; R v Mott [2012] NZHC 2366, obviously a case from New Zealand; and two Victorian cases: R v Maxwell [2003] VSC 278 and R v Hood (2002) 130 A Crim R 473.…
Hili v The Queen
[2010] HCA 45 Para 4

…nt with the principles laid down by the High Court in cases such as Barbaro v The Queen, Zirilli v The Queen (2014) 88 ALJR 372, and Hili v The Queen (2010) 242 CLR 520. In Barbaro , Chief Justice French and Justices Hayne, Kiefel (as her Honour then was) and Bell said this at paragraph 41: “…sentencing judges must h…
R v Maxwell
[2003] VSC 278 Para 13

…Supreme Court of the Australian Capital Territory; R v Mott [2012] NZHC 2366, obviously a case from New Zealand; and two Victorian cases: R v Maxwell [2003] VSC 278 and R v Hood (2002) 130 A Crim R 473.…
De Gruchy v The Queen
[2002] HCA 33 Para 4

…(b) or 311(c) unless satisfied beyond reasonable doubt that you held the relevant intention. As the High Court explained in De Gruchy v The Queen (2002) 211 CLR 85, the concepts of motive and intention are quite different. While your motive might not be relevant to your criminal responsibility – that is, your guilt…
Cheung v The Queen
[2001] HCA 67 Para 13

…As was observed by the High Court in R v Cheung (2001) 209 CLR 1, in approaching the task of fact finding on sentence, I must have regard not only to the elements which the jury found proved, but also to any issues which, by necessary implication from the verdicts, the jury have decided. See in particular Cheung at…
Pearce v The Queen
[1998] HCA 57 Para 10

…Nagy [2004] 1 Qd R 63. In that case, the Court of Appeal considered the earlier High Court decisions of Griffiths v The Queen (1989) 167 CLR 372 and Pearce v The Queen (1998) 194 CLR 610.…
Griffiths v The Queen
[1989] HCA 39 Para 10

…Court of Appeal in R v Nagy [2004] 1 Qd R 63. In that case, the Court of Appeal considered the earlier High Court decisions of Griffiths v The Queen (1989) 167 CLR 372 and Pearce v The Queen (1998) 194 CLR 610.…
There are some comparative sentences in relation to count 2, aiding suicide. They are R v Nielsen
[2012] QSC 029 Para 13

…There are some comparative sentences in relation to count 2, aiding suicide. They are R v Nielsen [2012] QSC 029, a sentence imposed by Justice Dalton; Walmsley v The Queen (2014) 253 A Crim R 441, a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory; R v Mott [2012] NZHC 236…
Zirilli v The Queen
[2014] HCA 212 Para 4

…In my view, such an approach is inconsistent with the principles laid down by the High Court in cases such as Barbaro v The Queen, Zirilli v The Queen (2014) 88 ALJR 372, and Hili v The Queen (2010) 242 CLR 520. In Barbaro , Chief Justice French and Justices Hayne, Kiefel (as her Honour then was) and Bell said this at paragr…

Legislation cited in this decision · 2

Evidence Act 1977 (Qld)
93B 2 mentions (from Para 14)
Penalties and Sentences Act 1992 (Qld)
9 2 mentions

CITATION:	R v Morant [2018] QSC 251
PARTIES:	R v GRAHAM ROBERT MORANT (defendant)
FILE NO/S:	Indictment No 1424 of 2018
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	2 November 2018 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	17 to 21 September 2018; 24 to 28 September 2018; 2 October 2018; 26 October 2018; 2 November 2018
JUDGE:	Davis J
ORDER:	Convictions recorded. On count 1, the defendant is sentenced to 10 years imprisonment. On count 2, the defendant is sentenced to 6 years imprisonment. The sentences are to be served concurrently. Pursuant to s 159A of the *Penalties and Sentences Act* 1992, it is declared that 32 days spent in pre-sentence custody between 2 October 2018 and 2 November 2018 be deemed time already served under the sentence
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – OTHER MISCELLANEOUS OFFENCES AND MATTERS – where the defendant was charged with one count of counselling suicide and one count of aiding suicide pursuant to s 311 – where the defendant was convicted of both counts after trial – where no comparatives are available for the offence of counselling suicide CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – where the Crown pressed for sentencing on the basis that the defendant counselled and aided his wife to commit suicide motivated by financial benefit – where the defence resisted that finding – whether such a finding should be made on sentence Criminal Code (Qld) s 293, s 301, s 306, s 311 Evidence Act 1977 (Qld) s 93B, s 132C Penalties and Sentences Act 1992 (Qld) s 9 Attorney-General for the State of South Australia v Tichy (1982) 30 SASR 84, followed Barbaro v The Queen, Zirilli v The Queen (2014) 88 ALJR 372, followed Burns v The Queen (2012) 246 CLR 334, cited Carter v Attorney-General (No 2) [2014] 1 Qd R 111, cited Hili v The Queen (2010) 242 CLR 520, cited R v Cheung (2001) 209 CLR 1, followed R v Goodwin; ex parte Attorney-General [2014] QCA 345, followed R v Hood (2002) 130 A Crim R 473, considered R v Maxwell [2003] VSC 278, considered R v Mott [2012] NZHC 2366, considered R v Nagy [2004] 1 Qd R 63, cited R v Nielsen [2012] QSC 029, considered Walmsley v The Queen (2014) 253 A Crim R 441, considered
COUNSEL:	M Lehane for the Crown M Thomas and D Wells for the defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Team Lawyers for the defendant